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Monday, July 6, 2009

The war between privacy and history

Frequently, in my talks about Annie’s Ghosts over the last six weeks, the conversation winds its way around to this question: Can families obtain the records of relatives who spent time in state or county hospitals?

The answer: Maybe, but it won’t be easy.

For decades, states have withheld certain government records, particularly medical records, from public scrutiny. States also have policies about how long it must retain its records, and how to dispose of them. While every state and the federal government maintains historical records, often at special archives, most publicly-generated records are not preserved.

The National Archives, for example, saves only about fraction of the millions of pages of new federal records created annually. The Archives judges only three percent of all government documents to be historically significant enough to preserve.

Journalists and historians, of course, would love to see them all. We don’t have to pay for their upkeep or the mountain of hours that would be required to sift and catalog them, and make an index or finders’ guide to make the information more useful. On the other hand, digital technology changes the rules of the game, allowing governments to store much more data in much less space. Searchable databases would reduce (but not eliminate) the cataloguing process.

Those are the logistical challenges, which are tough enough. The philosophical challenge is even harder. To be blunt, there’s a silent war going on between privacy and history, and privacy is winning. Recent changes in federal and state laws has exalted privacy at the expense of history. HIPAA, the reigning federal law, has conferred privacy rights on the dead, allowing medical records to remain under wraps permanently.

In the case of a celebrity, some form of privacy might make some sense in the short term (imagine the mad rush for medical records every time a Michael Jackson died). But keeping patient records closed forever (or destroying them after 20 years) only serves to guarantee that historians can’t write a meaningful history of some of our public institutions.

In researching Annie’s Ghosts, I was told that records of my aunt’s 31 years in two of Michigan’s public psychiatric institutions no longer existed. They were destroyed, a state official told me, because they were older than 20 years, the limit under the state’s “record retention” policy.

The rise of digital technology will lead governments to re-evaluate the necessity of destroying all those paper records. That will put the focus on who should have access to sensitive records, and when.

Census records are opened to the public 72 years after they are collected. Robert Gellman, an expert on privacy law who helped craft legislation on Capitol Hill for two decade, told me that privacy rights and the historical record could both be served by some sort of time limit for the opening of medical records, although he would favor something far shorter than 72 years.

Most people would claim to be in favor of both privacy and history. That’s the problem. “Genuine tragedies in the world are not conflicts between right and wrong,” Hegel, the German philosopher, once observed. “They are conflicts between two rights.”

Exalting privacy has come at the expense of history. That’s one tragedy, to use Hegel’s word, that we can prevent.

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